Muwema v Facebook Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 23 August 2016
• Neutral Citation: [2016] IEHC 519
• Court: High Court
• Docket Number: Record No. [2016] 4637P
• Date: 23 August 2016

FRED MUWEMA

Plaintiff

-and-

FACEBOOK IRELAND LIMITED

Defendant

[2016] IEHC 519

Record No. [2016] 4637P

THE HIGH COURT

Information Technology & Data Protection – Defamation – Ss. 33 and 27 (2) (c) of the Defamation Act 2009 – European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. 68 of 2003) – Defences to Intermediary service provider – Innocent publication – Norwich Pharmacal order

Facts: The plaintiff, in the present proceedings, claimed damages for defamation for the articles posted by the third party on Facebook. The plaintiff also sought various interlocutory orders such as prohibition of the publication of the alleged defamatory material on the defendant's website, preventing the same activist or others from reposting the said defamatory material and a Norwich Pharmacal order. The plaintiff contended that the defendant was not entitled to defence of innocent publication under s. 27 (2) (c) of the Defamation Act 2009, as the defendant was aware of the reported content. The plaintiff relied on reg. 18(3) of the European Communities (Directive 2000/31/EC) Regulations 2003 in support of the present application, which grant discretion to the Court to make an order against an intermediary service provider. The defendant claimed benefit of protection afforded under reg. 18 (1) of the said 2003 Regulations on the ground that it had no knowledge about whether the reported content was unlawful.

Mr. Justice Binchy made Norwich Pharmacal order as agreed between the parties and refused to grant the other reliefs sought by the plaintiff. The Court held that the defendant as an Intermediary service provider (ISP) was entitled to avail the defence of innocent publication provided under s. 27 (2) (c) of the 2009 Act, which had the effect of precluding the plaintiff from obtaining an order under s. 33 of the Act of 2009. The Court found that regs. 15-18 of the said 2003 Regulations also provide another line of defence to the defendant. The Court held that the said Regulations themselves did not confer a power upon the Court to make an order against the ISP requiring it not to infringe or cease to infringe any legal rights and that power was vested under s. 33 of the 2009 Act, which was subject to limitations mentioned therein. The Court found that the defendant as an information society service provider within the meaning of the Directive 2000/31/EC and the 2003 Regulations as such had no liability for material published by users on the defendant's website. The Court held that an order under s. 33 of the 2009 Act could not be granted to the plaintiff as the defendant had defence that was reasonably likely to succeed. The Court held that an application for takedown and prior restraint orders must be refused, as it would serve no useful purpose, having regard to the availability of publications containing the same and other damaging allegations about the plaintiff elsewhere on the Internet.

JUDGMENT of Mr. Justice Binchy delivered on the 23rd day of August, 2016.

1 The plaintiff in these proceedings claims damages for defamation of character which he claims he has suffered by reason of articles posted on Facebook by a third party. Prior to issuing these proceedings, the plaintiff requested the defendant to take down the articles from its site, but it declined to do so. The plaintiff subsequently issued these proceedings, and by this application he seeks a number of interlocutory orders as follows:

(i) a permanent order pursuant to section 33 of the Defamation Act 2009, (hereafter ‘the Act of 2009’) prohibiting the publication or the further publication of the Facebook page of one Tom Voltaire Okwalinga (hereafter ‘TVO’), hosted by the defendant and a number of articles posted by TVO (hereafter the ‘Reported Content’), which I will shortly discuss.

(ii) In the alternative, an Order pursuant to section 33 of the Act of 2009 prohibiting the publication or further publication of a number of posts set out in the schedule to the plenary summons and appearing on the Facebook page of TVO.

(iii) An order that the defendant or any person having notice of the order cease and desist in the further publication of the impugned articles.

(iv) An order directing the defendant to provide the plaintiff with any details which it holds relating to the identities and location of the person or persons who operate the Tom Voltaire Okwalinga Facebook page or the individual posters thereon i.e. ‘Norwich Pharmacal’ order.

2 The plaintiff is a Ugandan lawyer and a partner in the Ugandan firm of Muwema & Co., Advocates and Solicitors. In his affidavit grounding the application herein, he avers that his firm is a ‘high profile and prestigious’ law firm, which over the years has been involved in a series of landmark cases in Uganda. He says his firm specialises in the areas of Intellectual Property and Anti-Counterfeit Law

3 The plaintiff takes issue with what he describes in his grounding affidavit as three ‘highly offensive and defamatory publications’ that have been posted on the defendant's site, by a person identified only by the pseudonym TVO.

4 The defendant is the operator of the ‘Facebook’ social media site for users residing outside of the United States and Canada. The offending articles were posted between 17th March 2016 – 24th March 2016.

5 By way of letter dated 22nd March 2016, the plaintiff wrote to the defendant seeking the removal of the Reported Content from its site and also sought disclosure of the IP address of TVO. Following this letter, correspondence was exchanged between the parties. On 31st March 2016 White & Case LLP, representing the defendant, wrote to the plaintiff stating that the defendant was unable to comply with the plaintiff's request to remove the Reported Content stating:

‘To the extent you claim that any content on the Facebook service is defamatory in nature, your complaint should be addressed to the user who created and posted the content, not Facebook. Moreover, Facebook is not in a position to evaluate the truth or falsity of such content and will not remove or block it absent proper service of a valid court order identifying the specific content deemed to be defamatory.’

6 The plaintiff subsequently engaged Messrs. Lavelle, Solicitors, who on 19th April 2016 wrote to the defendants again calling on the defendant to remove the offending content. Messrs. Lavelle stated that the defendant was violating its own Statement of Rights and Responsibilities and highlighted that the plaintiff continued to suffer loss and damage. Following a further letter dated 4th May 2016, the defendant sent an email to the plaintiff's solicitors on 9th May 2016, stating that the Reported Content was no longer accessible in Uganda. However, it subsequently transpired that this was not the case.

The Reported Content : Plaintiff's Grounding Affidavit

7 In his grounding affidavit of 23rd May 2016, the plaintiff avers that the first publication complained of was posted on the TVO page on 17th March, 2016 and bore the title ‘ Betrayal in the City.’ The second article to appear was entitled ‘ Scandal Lawyer Fred Muwema, is now guarded by Special Forces Command Operatives who follow him everywhere and are dressed in civilian clothes, and armed with revolvers’ and appeared on the TVO page on 19th March 2016. A third article entitled ‘ Muwema is a joke of a lawyer’ was posted on the TVO page on 24th March 2016. The above posts were updated and edited on 18th March, 22nd March and 24th March 2016. The plaintiff argues that the articles are false, scurrilous and defamatory of him and submits that the articles assert that:

1. That the plaintiff has accepted bribes in the amount of US$ 260,000;

2. That the plaintiff staged a break in into the premises of his own law firm in order to jeopardise a presidential election and petition;

3. That the plaintiff is now constantly guarded by armed forces

8 The plaintiff avers that since these articles were published on the Facebook page of TVO, there have been an indeterminate number of subsequent comments and posts, which have ‘condemned, ridiculed and threatened both myself and my firm as well as endangering my safety, reputation and credit.’

9 The plaintiff in his grounding affidavit highlights the gravity of the TVO allegations, particularly having regard to his professional standing as a lawyer and emphasising that taking a bribe is contrary to the disciplinary code of his profession. He also highlights the fact that destroying evidence or obstructing the course of judicial proceedings, are offences that are punishable by seven years imprisonment in Uganda. The plaintiff avers that the Reported Content impinges on his standing and reputation as a lawyer and takes issue with the fact that they remain visible on the defendant's site. The plaintiff further avers that since the publication of the posts, a number of his colleagues, acquaintances, business associates and clients have queried and remarked on the articles, which according to the plaintiff, has caused him anxiety and severe stress; he also avers that he has been held up to public ridicule, contempt and threats.

Defendant's Replying Affidavit

10 The defendant delivered a replying affidavit sworn by a Mr. Jack Gilbert, its lead litigation counsel on 9th June, 2016. In his affidavit, which contains a mixture of averments as to fact and legal submissions, Mr. Gilbert avers that it is not legally required of or possible for the defendant to monitor proactively material published by its users on the Facebook site; as of March 2016, there were 1.09 billion daily active users of the Facebook service and 1.65billion monthly active users. It is averred that given the sheer amount of content on the site, comment and opinion about public figures and politicians is inevitable. Mr. Gilbert refers to the defendant's community...